Friday, 29 May 2015

Yesterday’s publication of the
Referendum Bill fired the starting pistol in the process of renegotiating the UK’s
membership of the EU, and holding an ‘in-out’ referendum on the results. I’ll
look at two different elements of the Bill: the parliamentary process and its main
contents. It inevitably leaves some issues out, since a Referendum Bill is only
meant to deal with the basic referendum process, not with the substantive
questions like the content of the renegotiation or the consequences of
withdrawal.

Parliamentary process

Although some press reports give
the impression that the contents of the Bill are already law, this is obviously
not the case. Every Bill must be approved by both Houses of Parliament before
it becomes law. Even then, it would always be possible to amend the ensuing Act
of Parliament.

Will the Referendum Bill become
an Act of Parliament? Yes, that’s virtually certain. The principle of a referendum
on EU membership is not only supported by the Conservative majority in the
House of Commons, but also (following a recent U-turn) by the Labour party.
That should ensure that a Referendum Act can get through both the Commons and
the Lords.

However, the devil is in the
details. It’s still possible that the Bill could be amended, particularly as
regards the issues discussed below (the question, the timing and the
franchise). In the last majority Conservative
government, the Bill to ratify the Maastricht Treaty ran in to endless trouble
at the hands of an alliance of Labour and Eurosceptic Tory MPs. The current
Conservative government has a similar slim majority in the House of Commons,
and while there are fewer Labour MPs, there are more Eurosceptic Tories. Time
will tell whether these two groups (perhaps in conjunction with the big
contingent of Scottish National Party MPs?) can find common cause as regards any
amendments.

The Bill also has to pass the
House of Lords, of course. While it is unlikely to be defeated as such there (in
part because of the ‘Salisbury Convention’, which provides that the House of
Lords will not oppose the principle of Bills which were set out in the winning
party’s manifesto), again there may be attempts to amend the details. The
political dynamics are different, since the Conservative party does not have a
majority. While the House of Commons can override the House of Lords if need
be, by use of the Parliament Acts, this
would cause a one-year delay in the entry into force of the law, scuppering any
plan to hold the referendum in 2016.

Main contents

Most of the Bill sets out the dry
but necessary detail of the mechanics of holding the referendum. But it does
address three key issues: the timing, the question and the franchise (ie, who
can vote). I will address these issues in turn.

First of all, the timing. As
promised by the Conservative party, the Bill sets a deadline of end-2017 for
the Referendum to take place. A referendum in the midst of Christmas shopping
is highly unlikely, so the latest realistic date would be November 2017. In
fact, the real issue is whether the referendum might be held earlier, sometime
in 2016. There’s been some speculation that it might be held in May 2016, on
the same date as elections in London, Scotland and Wales. Ideally, as
recommended by the Electoral Commission, the referendum should not be
held the same day as other elections, to ensure that voters are completely
focussed on the separate choices facing them. Furthermore, holding the referendum on the
same day as elections in pro-EU areas such as Scotland and London will give
rise to suggestions that the poll is biased, which it is better to avoid.

Secondly, the question. The Bill
suggests the following question:

“Should the United Kingdom remain a member of the
European Union?”

Some have objected to the word ‘remain’,
because it allegedly biases the question in favour of staying in. However, I see
no problem in referring to an objective fact: the UK is indeed currently a
member of the EU. Indeed, the Electoral Commission recommended the word ‘remain’
rather than ‘in’, because apparently some people are unaware that the UK is currently a member of the EU. I am hoping
that none of my former students are among them!

It will still be fully open to
the ‘Out’ side to try to convince the public that our current EU membership is a
bad thing. Indeed, their whole argument will
presumably rest on the awful consequences of being (and indeed remaining) an EU member.

Having said that, it would be
preferable not to give either side the supposed advantage of being the ‘Yes’
side. A better question would therefore be ‘Should the UK remain a member of the European
Union, or leave?’ with the possible answers being ‘remain’ or ‘leave’.

Some have suggested that there
should be multiple questions on the ballot paper, namely a chance to vote for
the current status quo of EU membership, as well as withdrawal or Cameron’s renegotiated
version (see Jon Worth’s blog for how this could work). The argument
against this is simply democratic legitimacy: the Conservative party won a
majority in the House of Commons on the basis of holding an in/out referendum on the renegotiated terms.

This brings me to the vexed
question of the franchise. The Bill proposes to use the franchise for general
elections: citizens of the UK, Ireland and Commonwealth countries over 18 years old
living in the UK, and UK citizens living abroad for less than 15 years. But it
proposes to add members of the House of Lords and residents of Gibraltar. I
have already blogged on the reasons why the general election franchise
should be used, due to concerns about legitimacy as well as tactics. (See also
the analysis by Jo Shaw here). But some have suggested that it may be
illegal to ban EU citizens in the UK from voting in the referendum: see the arguments by Richard Edwards here and by Albert Sanchez Graells here.

Let’s examine these legal
arguments in more detail. The obvious argument against the right of EU citizens
to vote in the referendum is the list of EU citizens’ rights in Article 20
TFEU. That list includes the right to vote in local and European Parliament (EP)
elections, but does not mention other elections. Article 25 TFEU then says that
for EU citizens to have more rights, a further Council Decision has to be
agreed and ratified. In the absence of such a decision, they surely do not have
further electoral rights. The general references to democracy in the Treaties
aren’t very specific, and mostly (for instance in Article 10 TEU) refer to the
EU institutions only. It can’t be seriously argued that the ‘general principles’
of EU law require all EU citizens to vote in referenda, in the absence of any
widespread practice to that effect (even Ireland does not allow UK citizens to
vote in referenda).

The EU Charter of Rights doesn’t
help either. It only mentions the rights to vote in local and EP elections, and
Article 52(2) of the Charter makes clear that these provisions of the Charter
do not add anything to the citizenship provisions of the Treaties. Anyway, the
Charter only applies where there is a link to EU law, and although the process
of withdrawal from the EU is referred to in Article 50, Article 50(1) in turn refers
to the national law of individual Member
States as regards the decision on whether to withdraw. It couldn’t be any
clearer that it’s entirely up to each Member State to decide who votes in a
withdrawal referendum. And for those contemplating litigation on this issue: do
you seriously think that the prospects of an ‘In’ vote (and British citizens’ regard
for the EU more generally) could possibly be helped by a EU or ECHR court (or a
UK court doing their bidding) ordering Parliament to allow EU citizens to vote
in the referendum?

Thursday, 28 May 2015

This week the European Commission
took its first steps towards implementing its new EU Migration Agenda
(previously discussed here). A number of the items in the agenda have
already been addressed (for instance, the military mission against smugglers on
the Libyan coast, as discussed here). Others will be addressed later: a
broader reform of legal migration law and changes to the rules on asylum
procedures and the ‘Dublin’ rules on responsibility for asylum-seekers.

The first batch of measures
contained five different elements. First of all, the Commission launched a
public consultation on the reform of the existing EU law providing for a
‘Blue Card’ for the admission of
highly-skilled non-EU migrants. I have commented previously here on the
implementation of this law and the reforms to it which should be adopted.

Secondly, the Commission released
an Action Plan against migrant
smuggling. This mainly elaborates upon several ideas mentioned already in
the main agenda. This includes: a revision of EU anti-smuggling law, planned
for 2016, to increase smugglers’ penalties and clarify humanitarian exceptions
from the rules; possible new rules on immigration liaison officers in 2016; a
Handbook on expulsion in 2015; a possible revision of the rules on trafficking
victims, in 2016, to include ‘victims’ of smuggling; a revision of the
legislation on Frontex (the EU border agency), to give it more powers relating
to expulsion; changes to the rules on the Schengen Information System in
2015-16, so that all Schengen Member States’ entry bans are applicable across
the Schengen area; a handbook on prevention of migrant smuggling in 2017; readmission
agreements with sub-Saharan countries; and stronger enforcement of the rules prohibiting
employment of irregular migrants. Most of these measures concern all irregular
migrants, not just those who were smuggled to the EU.

Thirdly, the Commission adopted a
Recommendation on the resettlement
of refugees directly from outside the EU to EU Member States. As a Recommendation it is non-binding, and as an act of the
Commission, it does not need the approval of the Council or the European Parliament.
According to the new Immigration Agenda, there will be EU funds attached to
each resettled refugee, so Member States are encouraged to resettle people. It
is a useful measure to ensure that a bigger number of persons are rescued without
having to risk their lives or pay smugglers to cross the Mediterranean,
although the overall numbers are likely to be modest. In the event that Member States do not make
use of the Recommendation to resettle refugees, the Migration Agenda promises a
proposal for a binding measure, although it might be hard to find sufficient
support in Council for its adoption.

Fourthly, the Commission issued guidance
on the fingerprinting of asylum-seekers,
as provided for in the EU’s Eurodac legislation, which sets up a database
of such fingerprints in order to apply the ‘Dublin’ rules more effectively. In
the Commission’s view, any irregular border-crosser who refuses to give
fingerprints ought to be detained, expelled and subjected to an entry ban, in
accordance with EU asylum law and the Returns Directive. Alternatively, Member
States could force them to take fingerprints, with a possible exception for pregnant women and minors. Frankly, the
correct application of the EU’s Dublin system is not worth the health of life
of a single unborn child.

Moreover, the Commission appears
to be confused about the details of the relevant legislation. It would be
necessary to prove that refusal to take fingerprints ‘avoids or hampers the
preparation of return or the removal process’ to justify detention under the Returns Directive; but the purpose of the fingerprinting is mainly to apply the
Dublin asylum rules, not to ‘prepare the return and/or carry out the removal
process’, which is the legal basis for detention of irregular migrants under
the Returns Directive. Furthermore, the rules on entry bans in that Directive make
no reference to the issue of fingerprinting. As for asylum-seekers, the paper
is correct to say that they can be detained in order to ‘verify their identity
and/or nationality’ in the EU’s Reception Conditions Directive. However,
for asylum-seekers who have been fingerprinted already by a Member State and
then apply for asylum in a second Member State, the Commission fails to mention
that the Dublin rules apply. They permit detention only where there is a
‘significant risk of absconding’, which does not automatically follow from a
refusal to be fingerprinted.

Fifthly, the Commission proposed a
Decision on relocation of
asylum-seekers between Member States. This is the only one of this week’s proposals
which would (if adopted) be legally binding. Like most Commission proposals,
this needs a qualified majority of Member States to support it in the Council;
unlike most EU law, the European Parliament need only be consulted. It seems
from press reports that there will be a ‘blocking minority’ of Member States
preventing its adoption, unless some of them change their position. It’s also possible
that it will be agreed, but with major changes. But for now, let’s look at what
the proposal would do if adopted.

The main thrust of the proposal
is to derogate from the usual ‘Dublin’ rules as regards Italy and Greece, and distribute
about 40% of the asylum-seekers which would normally be the responsibility of
those Member States under the Dublin rules to other Member States. Due to
opt-outs, the other Member States will not include Denmark or the UK, although
it seems possible that Ireland will opt in. The proposal also will not apply to
the non-Member States bound by the Dublin rules (Norway, Switzerland, Iceland
and Liechtenstein). It would effectively be a regime within a regime, with only
25 or 26 of the 32 Dublin States applying it.

The relocated asylum-seekers will
be split 60/40 between Italy and Greece, and will be allocated to other Member
States on the basis of the criteria set out in the Annexes to the proposal.
Relocation will be selective, applying only to those nationalities whose
applications have over a 75% success rate in applications for international
protection. It’s clear from the proposal that the Commission believes that only
Syrians and Eritreans will qualify. The Member State of relocation will be
responsible for considering the application, and asylum-seekers and refugees
will not be able to move between Member States, in accordance with the normal
Dublin rules. (After five years’ residence, refugees can move between Member
States, according to the EU’s long-term residence Directive).

Besides the nationality
criterion, who will be relocated? Asylum-seekers must be fingerprinted in order
to qualify. The selection of asylum-seekers will be made by Italy and Greece,
who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by
the EU reception conditions Directive. This refers to a long list of people:

‘such as minors,
unaccompanied minors, disabled people, elderly people, pregnant women, single
parents with minor children, victims of human trafficking, persons with serious
illnesses, persons with mental disorders and persons who have been subjected to
torture, rape or other serious forms of psychological, physical or sexual
violence, such as victims of female genital mutilation’

Implicitly, the other Member
States must accept the asylum-seekers nominated by Italy and Greece, except
that they can refuse relocation if it’s ‘likely that there are national
security or public order concerns’.

What about the asylum-seekers
themselves? There is no requirement that they consent to their relocation or
have the power to request it. The proposed Decision only requires Italy and
Greece to inform and notify the asylum-seekers about the relocation, and the
Commission suggests that they could only appeal against the decision if there
are major human rights problems in the country to which they would be
relocated. So neither the relocation itself, nor the choice of Member State
that a person will be relocated to, is voluntary. This is problematic, since forcing
asylum-seekers to a country that they don’t want to be in is one of the key problems
facing the Dublin system already.

Of course, it’s possible that
like children left in an orphanage who weren’t
picked by new parents, there will be rather more asylum-seekers disappointed
that they were not selected for
relocation. Do they have the right to a
legal challenge? Arguably yes, to the extent that Italy and Greece select
people who are not vulnerable for
relocation, in light of their legal obligation to select vulnerable persons as
a priority.

Asylum-seekers do have the right
to insist that their core family members (spouse or partner, unmarried minor
children, or parents of minors) who are already on EU territory come with them
to the relocated Member State. It’s not clear if Member States could count the
transfer of family members towards their overall quota. If the asylum-seekers
obtain refugee status in the State of relocation, they could also apply for family
reunion under the EU’s family reunion Directive.

Similarly, it’s not clear if Member
States can count towards their overall quota asylum-seekers who would normally
be the responsibility of Italy and Greece, but who have already found their way
on to another Member State’s territory. This might be termed relocation sur place. According to the rules in the
Decision, this would in any event depend upon the willingness of Italy and
Greece to designate such asylum-seekers for relocation. And as the Commission
notes, persons who would already be the responsibility of Greece cannot be sent
back there anyway due to the collapse of the asylum system in Greece, according
to the CJEU ruling in NS(the
position regarding Italy is more qualified: see the discussion of last year’s Tarakhel judgment). Of course, it
is possible that the relocation of significant numbers of asylum-seekers away
from Greece will contribute to solving the systemic problems with that country’s
asylum system in the foreseeable future.

Overall, if the Council is willing
to agree to the proposed Decision, it is likely to make a significant
contribution to solving the problems with the asylum systems of some Member
States, although only the more significant review of the Dublin rules promised
for 2016 (or a profound improvement in the situation of countries of origin or transit)
could provide a long-term solution. It is very striking that while this
proposal effectively admits that the Dublin system is profoundly dysfunctional,
the separate set of fingerprinting guidelines issued on the same day adopts a
tone of head-banging savagery to try and get that system to work.

A final question arising is the impact of the proposed asylum measures on the UK. While the UK has an opt out, some suggest that all asylum-seekers who reach the EU could ultimately obtain EU citizenship and then move to the UK. However, the proposed Decision only relocates asylum-seekers who have already reached the EU, rather than increase the total number of asylum-seekers. Furthermore, a recent fact check suggests that only a modest number of non-EU citizens get Italian nationality each year, and that Italy only grants refugee status to a handful of people. Indeed, the only prominent Italian citizen with an African background currently in the UK is Mario Balotelli - but I don't want to intrude into the private grief of Liverpool football fans.

Tuesday, 26 May 2015

Due to my concern about inadequate democratic scrutiny of changes to UK law (often linked to EU law) affecting privacy rights, I am one of the signatories to today's letter to MPs on this issue, published in the Guardian and elsewhere. Thanks to Andrew Murray and Paul Bernal for taking this initiative.

An
open letter to all members of the House of Commons,

Dear
Parliamentarian,

Ensuring the Rule of Law and the democratic
process is respected as UK surveillance law is revised

Actions Taken Under the Previous Government

During
the past two years, the United Kingdom’s surveillance laws and policies have
come under scrutiny as the increasingly expansive and intrusive powers of the
state have been revealed and questioned in the media. Such introspection is
healthy for any democracy. However, despite a need for transparency in all
areas of lawmaking, and in particular in areas of controversy, the previous Government
repeatedly resisted calls for an open and transparent assessment and critique
of UK surveillance powers. Instead, in response to legal challenges, it extended
the powers of the state in the guise of draft Codes of Practice and “clarifying
amendments.” As we welcome a new Government we expect another round of
revisions to UK surveillance laws, with the likelihood that the Queen’s Speech
will signal a revival of the Communications Data Bill. At this time we call on
the new Government, and the members of the House, to ensure that any changes in
the law, and especially any expansions of power, are fully and transparently
vetted by Parliament, and open to consultation from the public and all relevant
stakeholders.

Last
year, in response to the introduction of the Data Retention and Investigatory
Powers Bill (“DRIP”), a number of leading academics in the field – including
many of the signatories to this letter – called for full and proper
parliamentary scrutiny of the Bill to ensure Parliamentarians were not misled
as to what powers it truly contained. Our concern emanated from the Home
Secretary’s attempt to characterize the Bill, which substantially expanded
investigatory powers, as merely a re-affirmation of the pre-existing data
retention regime.[1]

Since
that letter was written, it has become apparent that the introduction of the
DRIP Bill was not the only time an expansion of surveillance powers was
presented in a way seemingly designed to stifle robust democratic
consideration. In February 2015, the Home Office published the draft Equipment
Interference Code of Practice.[2]
The draft Code was the first time the intelligence services openly sought
specific authorisation to hack computers both within and outside the UK.
Hacking is a much more intrusive form of surveillance than any previously
authorised by Parliament. It also threatens the security of all internet
services as the tools intelligence services use to hack can create or maintain
security vulnerabilities that may be used by criminals to commit criminal acts
and other governments to invade our privacy. The Government, though, sought to
authorise its hacking, not through primary legislation and full Parliamentary
consideration, but via a Code of Practice.

The
previous Government also introduced an amendment via the Serious Crimes Act
2015, described in the explanatory notes to the Bill as a ‘clarifying
amendment’.[3]
The amendment effectively exempts the police and intelligence services from
criminal liability for hacking. This has had an immediate impact on the ongoing
litigation of several organisations who are suing the Government based in part
on the law amended, the Computer Misuse Act 1990.[4]

The Way Ahead

The
new Conservative Government has announced its intention to propose new
surveillance powers through a resurrection of the Communications Data Bill.
This will require internet and mobile phone companies to keep records of customers’
browsing activity, social media use, emails, voice calls, online gaming and
text messages for a year, and to make that information available to the
government and security services. We also anticipate this Parliament will see a
review of the Regulation of Investigatory Powers Act 2000, which currently
regulates much of the Government’s surveillance powers. The Independent
Reviewer of Terrorism Legislation, David Anderson QC, has conducted an
independent review of the operation and regulation of investigatory powers,
with specific reference to the interception of communications and
communications data. The report of that review has been submitted to the Prime
Minister, but has yet to be made public: when it is made public, parliamentary
scrutiny of the report and any recommendations made following it will be
essential.

As the
law requires that surveillance powers must be employed proportionate to any harm
to privacy caused (as required by Article 8 of the European Convention on Human
Rights and Article 12 of the Universal Declaration of Human Rights) we believe
that any expansion or change to the UK’s surveillance powers should be proposed
in primary legislation and clearly and accurately described in the explanatory
notes of any Bill. The Bill and its consequences must then be fully and frankly
debated in Parliament. When reaching an assessment of the proportionality, of
any measure that restricts rights, both our domestic courts and the European
Court of Human Rights place great stock on the degree and quality of
Parliamentary involvement prior to any measure being adopted. If the matter
ever came to before the courts one issue examined would be the nature of any
“exacting review” undertaken by MPs into the necessity of extending these
powers. The Government should not be permitted to surreptitiously change the
law whenever it so desires, especially where such changes put our privacy and
security at risk.

This
letter has been prepared and signed by 35 academic researchers. We are
comprised of people from both sides of this issue - those who believe that
increased powers are a reasonable response to an emerging threat, and those who
think them an unjustified extension of state interference. Our common goal is
to see the Rule of Law applied and Parliamentary oversight reasserted. We are
calling on all members of the House of Commons, new and returning, and of all
political persuasions to support us in this by ensuring Parliamentary scrutiny
is applied to all developments in UK surveillance laws and powers as proposed
by the current Government.

Monday, 25 May 2015

The
question of who votes in what elections is usually thought to be a rather nerdy
and obscure question, and it doesn’t often capture the public imagination. So
it was quite something to see an
announcement from Number 10 in advance of the publication of the EU Referendum
Bill telling us what the franchise is going to be in the referendum trending as
‘most popular’ and as a ‘top story’ on the BBC News website early in the
morning of the late May Bank Holiday 2015. The announcement seems to have been made
to forestall further debate on the franchise, which had been gaining quite a
lot of traction on the airwaves, in the newspapers and in social media.

According
to the announcement, the Referendum Bill will use a modified Westminster
franchise. So it will largely use the franchise for UK national elections –
i.e. resident UK, Irish and Commonwealth citizens, plus UK citizens who have
not been resident outside the UK for more than 15 years, but it will import two
additional elements from the franchise for European Parliament elections:
members of the House of Lords will be able to vote, plus those who are resident
in Gibraltar. It would not include three groups of possible voters:

·UK citizens resident abroad for more than 15 years, no matter how long they have been resident outside the UK;

·EU citizens who are able to vote in the UK in
European Parliament and local elections (and in the elections for the devolved
assemblies and Parliaments) on the basis of residence; and

·16-17 year olds (presumably in the above
categories as well as those who are resident UK citizens)

The
issue has become politicised in the UK, in part because the first group felt
they had been the recipients of a firm
pledge from the Conservative party that the current 15 year bar on
expatriate voting would be removed (this was later repeated in the 2015
Conservative Party manifesto: see p 49), and the latter two groups both voted
in the September 2015 referendum on Scottish independence, with the third group
also set to vote in future Scottish elections (including the one to be held in
2016), pursuant to an anticipated Westminster devolution of power to the
Scottish Parliament to set its own franchise.

All
debates and decisions about the franchise are a mixture of principle and
pragmatism – especially in the UK, where the starting point is a rather mixed
bag of voting rights. So unlike the vast majority of states worldwide, the UK
does not limit its voting rights in national elections to citizens alone. On
the contrary, ever since the current boundaries of the UK as we know it were
carved out as a result of the end of empire and the dissolution of the union
with Ireland, those who had been ‘subjects’ of the Crown found themselves
continuing to enjoy the franchise in the modern state, even if this sits
uncomfortably with a notion of a national citizenship which draws sharp
boundaries between those inside and outside the circle of inclusion.

That
said, the inclusion of at least some external voters in the UK franchise since
1980 has seen the UK aligning itself with a more general international
trend towards allowing non-resident citizens to vote in elections without
going as far as most states now do. So in 2014 the European Commission suggested
that the UK, along with four other EU Member States, should reconsider
its current policies and enact a more generous enfranchisement of external
voters, especially those resident elsewhere in the EU. This was to avoid the
situation whereby this group of voters might find themselves unable to vote in
any national elections (e.g. if they have been abroad more than fifteen years, but
yet did not qualify for citizenship in their host state, or for various reasons
did not want to acquire that citizenship, e.g. if that meant giving up UK
citizenship).

The
UK also has an unusual approach to the enfranchisement of non-UK EU citizens on
the basis of residence, which is only required under EU law for local and
European Parliament elections, but which is extended – as a matter of UK law –
also to elections to the devolved assemblies. Not only did EU citizens vote in
the Scottish independence referendum, but they have also voted in all of the
referendums that preceded the enactment of devolution arrangements, with the
exception of the referendum in Northern Ireland which was conducted on the
basis of the Westminster franchise. No other EU Member State has enfranchised
non-national EU citizens in this manner; other states continue to insist that
longterm resident EU citizens who want to vote in most regional and national
elections must themselves become citizens by naturalisation, with all the
difficulties that this may entail (including in some cases the loss of their
original citizenship). A wider enfranchisement of EU citizens on the basis of
residence has long been debated,
but a European Citizens’ Initiative
did not achieve much political traction across the EU.

And
while the initial proposal to enfranchise 16-17 year olds to vote in the
Scottish independence referendum was viewed with a degree of scepticism in some
quarters, perceptions have changed substantially on this issue in Scotland. The
enfranchisement is generally thought not
to have changed the result in any substantial way (16-17 year olds seem to
have had higher turnout figures than their immediate seniors, the 18-24 year
old age group, but probably a slightly greater propensity to vote no). But the
principle of enfranchising young adults in this way, and of ensuring that they
receive opportunities, within the framework of educational processes in
particular, of understanding the significance of the choices they are being
asked to make has been part of a ongoing politicisation process in Scotland
which receives wide approval, whatever position people take on the question of
an independent Scotland.

The
predictable result of all of this is confusion, as there is no coherent
‘membership model’ to which the UK adheres in the matter of elections or
referendums. The Scottish referendum franchise, which included a wide range of
persons resident in Scotland but excluded persons born in Scotland but now
resident elsewhere in the UK or outside the UK is a case in point. The latter
group would have become Scottish citizens in the event of a Yes vote (as well
as remaining, we can assume, UK citizens). The choice was widely defended as a reasonable
compromise on which to conduct the vote. Despite rumblings from ‘expat Scots’,
threatened litigation to challenge the franchise did not ensue – and for good
reason. For that referendum, as for the EU referendum, the setting of the
franchise is a matter for the legislation enacted to allow the referendum to
take place. There are no formal constitutional provisions on referendums in the
UK. And there are, in my view, no provisions of EU law or international human
rights law that would preclude the legislature having a free choice across the
range of existing electoral rolls, including those for local, devolved,
Westminster and European Parliament elections. This means that the franchise
can be the subject of political horse-trading.

Those
proposing any particular franchise for any given electoral or referendum event
will be aware of the fact that the roll chosen might
be very likely to affect the outcome. In excluding EU citizens, Prime
Minister David Cameron is said to be bowing
to eurosceptics in his own party. Equally, those who are campaigning for
the inclusion of EU citizens may be doing so not just because of the principle
that they have been resident and paying taxes for a long time, and that they
will be profoundly affected as
regards issues of personal status by the effects of the decision, but also
because they may have an inkling that this group would vote in favour of the UK
staying in if given the chance. That said, it is worth pointing out that
registration and participation levels amongst non-national EU citizens resident
in the UK in the elections they can vote in is lower than amongst UK citizens,
even though there are clearly some groups to whom these rights to vote – and
the possibility of participating in the EU referendum – matter intensely, for
obvious reasons. Even if they participated at the same rate as UK citizens,
they would be likely to account for less than 5%
of the overall voting roll. In any event, as has been pointed out, they retain the option of acquiring UK citizenship (between now and the date of the referendum, indeed) if they want to vote. External voters also continue to prove a stubbornly
hard to reach group, with much lower levels of participation during the
years when they are enfranchised. It seems likely that they too, if resident in
the EU at least, might be inclined to vote in favour of continued membership,
in order to protect their own status, although no one can be sure about that
point. Resident
16-17 year olds are, by contrast, not so hard to reach, but some people
continue to harbour doubts about whether it is appropriate that they should
vote, even though there is a modest international trend to lower the age of
franchise, as well as the positive
experience of the Scotland experiment on which to draw. Moreover, the
Scotland experience seemed to indicate that their overall voting choice might
not differ so greatly from that of the ‘mainstream’ voting population.

There
are no right or wrong answers on the question of the scope of the franchise.
The uncertainties around this question are, however, accentuated by the
uncertainties about exactly what we might be voting on, and when. At the time
when the Scottish referendum franchise was set, the terms of the vote were
pretty plain, although obviously there were certain clarifications (e.g. on
currency matters most particularly) during the course of the campaign. The EU
vote is quite different, because of the uncertainties (and secrecy) of the
diplomacy effort that the UK government is now purporting to lead, in order to
seek those adjustments to the terms of the UK’s membership that the government
claims it has an electoral mandate to negotiate, given the terms of its General
Election victory in May 2015. The possible ‘adjustments’ are profoundly unclear,
especially as regards the legal form that they might take, and of course there
are quite a few people in the UK who are sceptical about whether these
negotiations matter at all. Plenty will vote “in”, regardless of the Cameron
‘deal’. Plenty will vote “out”. The ‘deal’, for many observers, is simply a
process of political choreography to allow David Cameron and George Osborne to
avoid the Conservative Party falling apart over its divisions on the European
Union. It certainly isn’t about something which many EU citizens, right across
the EU might want to participate in if given a chance, namely a thorough transnational reconsideration of whether
the legal and political framework for economic integration across Europe is now
fit for purpose as we approach the middle decades of the twenty first century.
To that extent, non-UK EU citizens resident in the UK might end up feeling
doubly excluded if they do not have the vote: namely not only can they not
participate in whatever referendum there is, but also they may well feel that
the referendum that is taking place does not itself really get to the nub of
the issues as far as they are concerned.